2B Negligence (complete)

Question 1

What is negligence?

Answer 1

A breach of a legal duty to take care which results in damage to a claimant.

Question 2

What must be proved?

Answer 2

There is a duty of care, a breach of that duty and causation.

Question 3

What is Lord Atkin’s definition of neighbour?

Answer 3

Any person(s) who are closely and directly affected by my acts or omissions.

Question 4

Donoghue v Stevenson ratio

Answer 4

You must take reasonable care to avoid acts or omissions that you can reasonably foresee might injure your neighbour.

Question 5

Describe the Caparo test

Answer 5

Was the damage/harm reasonably foreseeable (Kent v Griffiths)?
Is there sufficient proximity between the claimant and defendant (yes in Osman v Ferguson, no in Bourhill v Young)?
Is it fair, just and reasonable to impose a duty on D (Hill v CC of West Yorkshire and Robinson)?

Question 6

Ratio of Kent v Griffiths

Answer 6

It was reasonably foreseeable that if the ambulance was late, this would cause further harm to the victim.

Question 7

Ratio of Osman v Ferguson

Answer 7

There was proximity between the police and victim because the police knew he was a possible victim.

Question 8

Ratio of Bourhill v Young

Answer 8

No proximity between Mrs B an the motorcyclist as she was not involved in the accident.

Question 9

Hill v CC of West Yorkshire ratio

Answer 9

It was not fair, just and reasonable to impose a duty on the grounds of public policy. This would lead t defensive policing and open the ‘floodgates’ to more claimants.

Question 10

Robinson ratio

Answer 10

The police owe a duty of care to protect an individual from danger they caused themselves

Question 11

What is the test for breach of duty?

Answer 11

The reasonable man test

Question 12

Blyth v Birmingham Waterworks Co ratio

Answer 12

“Negligence is the omission to do something which a reasonable man would do or doing something which a prudent and reasonable man would not do.”

Question 13

What are the categories for the degree of skill?

Answer 13

(Adult) professionals, adults, adult learners and children.

Question 14

Degree of skill- professionals

Answer 14

Professionals are judged against other professionals except in Bolitho where refusing to intubate the child was no illogical so there was no breach.

Question 15

Degree of skill- adults

Answer 15

The defendant is judged against the standards of a reasonably competent person doing the same activity (Wells v Cooper).

Question 16

Degree of skill- learners

Answer 16

Even a learner is expected to take the same standard of care of the ordinary average driver (Nettleship v Weston).

Question 17

Degree of skill- children

Answer 17

Children are less careful than adults so the standard is lower, in Mullins v Richards the risk is not one that a reasonable 15 year old would appreciate.

Question 18

What risks must be considered in breach?

Answer 18

Claimant’s special characteristics, the size of the risk, precautions (cost) and the public benefit in taking the risk.

Question 19

Risks- claimant’s characteristics

Answer 19

Anyone vulnerable increases the likelihood that the defendant has breached their duty (Paris v Stepney Borough Council).

Question 20

Risks- size of risk

Answer 20

Low risk (Bolton v Stone), high risk (Miller v Jackson).

Question 21

Risks- adequate precautions

Answer 21

Were the precautions taken reasonable, in Latimer v AEC, the risk could only have been eliminated by closing the factory which was an unreasonable cost to the defendant.

Question 22

Risks- public benefit in taking the risk

Answer 22

It may be excusable to take some risk if the task in hand is socially important or D is acting in an emergency (Day v High Performance Sports).

Question 23

Describe factual causation

Answer 23

The ‘but for’ test (White) tests whether the victim would’ve suffered the damage without the defendant’s actions. In Barnett v Chelsea Hospital the test failed because it wasn’t the factual cause of death.

Question 24

Legal causation stages

Answer 24

Intervening acts (the claimant, a third party and nature), remoteness of damage and the eggshell-skull (thin skull) rule

Question 25

Legal causation- intervening acts

Answer 25

The claimant- Mckew v Holland- the claimant’s actions were unreasonable so the defendant wasn’t liable for the further injuries sustained.
A third party- Knightley v Johns- the defendant’s actions negated Johns’ liability for the police officer’s injuries.

Question 26

Legal causation- Remoteness of damage

Answer 26

The Wagon Mound- harm to the claimant must be reasonably foreseeable, damage from the fire was too remote and not foreseeable.
Hughes v Lord Advocate- the method of injury doesn’t have to be reasonable foreseeable, only the type of injury.

Question 27

Causation- exception to the remoteness rule

Answer 27

Eggshell-skull (thin-skull) rule- Smith v Leech Brain and Co- the employer was liable for death from cancer was not foreseeable but the burn was, ‘take your victim as you find them’.

Question 28

What are the general defences?

Answer 28

Under the Law Reform (Contributory Negligence) Act 1945, the defendants can contribute to the negligence or consent to it (volenti non fit injuria).

Question 29

Defences- contributory negligence

Answer 29

Sayers v Harlow- the claimant contributed to the negligence due to her error of judgement so the damages were reduced by 25%.
Jones v Boyce- mistakes made in emergencies are allowed when the claimants acted reasonably in the agony of the moment.

Question 30

Defences- consent

Answer 30

The claimant must know the risk of injury, voluntarily decide to take the risk and agree to waive any claim in respect of such injury.
Smith v Baker- liable because mere continuance in service knowing the risk doesn’t equal consent
Pitts v Hunt- you cannot consent to actions on the road (Road Traffic Act 1988)
Sidaway v Hospitals- consent in medical cases doesn’t require a full explanation of remote side effects.

Question 31

What are the options for remedies?

Answer 31

Damages (money) or an injunction or both.

Question 32

What are the classifications of damages?

Answer 32

Special and general.

Question 33

Special damages

Answer 33

Financial losses up to the trial, for example loss of earnings, damage to goods and hospital bills/prescription charges.

Question 34

General damages

Answer 34

Pecuniary losses- involving future financial loss
Non-pecuniary losses- pain and suffering
Loss of earnings up until and after the trial are calculated (claimant’s annual net loss x number of earning years left = damages for loss of future earnings)
Medical expenses and pain, suffering and loss of amenity.

Question 35

How can damage be paid?

Answer 35

A lump sum, periodical payments

Question 36

What is duty to mitigate?

Answer 36

The claimant must take steps to minimise their loss and avoid taking unreasonable steps to increase their loss.